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EPA Proposes SIP Call in 36 States, Including Kentucky and Indiana, Regarding Start-up, Shutdown and Malfunction


In a number of EPA approved State Implementation Plans (SIP), states have provided various forms of exemptions for excess emissions that occur during periods of start-up, shutdown or malfunction.  Kentucky and Indiana both have such provisions.  The Kentucky provision is found at 401 KAR 50:055, which provides the Division for Air Quality Director discretion to relieve a source from emission standards if certain conditions have been met during planned or unplanned shut-downs, malfunctions and ensuing start-ups.  The Indiana provision, 326 IAC 1-6-4(a), provides that excess emissions during malfunction periods are not considered a violation if the source demonstrates compliance with a number of conditions.  (The Indiana provision is not applicable to Title V sources.)  The Sierra Club petitioned EPA requesting elimination of such exemptions in the SIPs of 39 states.  Sierra Club also petitioned EPA to prohibit affirmative defenses in SIPs and to discontinue reliance on interpretive letters from states intended to clarify any potential ambiguity in a state’s SIP submission.  EPA is proposing to grant the petitions regarding 36 states and to find that the SIPs of those 36 states are inadequate to meet the requirements of the Clean Air Act (SIP call).  EPA further proposes to deny both the Sierra Club request to prohibit affirmative defenses in SIPs and the request that EPA discontinue reliance on interpretive letters from states for clarification of any SIP submission ambiguity.

If the SIP call becomes final, EPA has proposed to give states 18 months from promulgation of the final inadequacy finding for response.  EPA proposes to allow an affirmative defense in the SIP for excess emissions that occur due to unplanned events such as malfunctions; however, EPA plans to rescind its prior interpretation of the Clean Air Act that would allow an affirmative defense for planned periods of start-up or shutdown.  However, EPA did state that “The Clean Air Act would allow special emissions limitations or other control measures or control techniques that are designed to minimize excess emissions during start-up and shutdown.”  EPA provided proposed guidance for promulgation of such limits, control measures or control techniques according to seven specific criteria that were enumerated in a 1999 EPA start-up, shutdown, and malfunction guidance document.

With respect to malfunctions, EPA specified that an affirmative defense should be limited to those malfunctions that are sudden, unavoidable and unpredictable.  EPA also stated that an affirmative defense must provide that the defendant has the burden of proof to demonstrate all of the elements of the defense to qualify and that the demonstration has to occur in a judicial or administrative proceeding where the merits of the affirmative defense are independently and objectively evaluated.  EPA recommended specific criteria for such an affirmative defense and also provided recommended regulatory language, currently used by EPA for affirmative defenses to malfunctions.  With regard to malfunctions that occur during planned start-up and shutdown periods or start-up and shutdowns that occur as the result of or part of a malfunction, EPA stated that it interprets the Clean Air Act to allow narrowly drawn affirmative defense provisions in such circumstances.  EPA stated its belief that the inquiry for such events should be case specific and dependent on the facts and circumstances of the event.  Finally, EPA reiterated that an affirmative defense provision in a SIP cannot extend to direct final regulations, such as New Source Performance Standards or National Emission Standards for Hazardous Air Pollutants, adopted or incorporated by reference into a SIP.  EPA stated that any affirmative defense warranted for malfunctions under those rules would be contained in the federal standards and no additional or different defense provision in a SIP would be warranted or appropriate.

EPA is accepting comments on the proposed SIP call through April 11, 2013.

To view a complete PDF of the January/February 2013 issue of the Environmental Letter, click HERE.

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